Confidentiality; Atty-Client Privilege; Work Product

Question 1

Sources of Secrecy Requirement

Answer 1

• Sources of secrecy requirement:
  1) Ethical duty of confidentiality under OHRP under
  2) Evidentiary attorney-client privilage
  3) Work product doctrine

Exam Tip 6: When reviewing a fact pattern, determine whether the attorney is dealing with voluntary or involuntary secrecy.

Example 6: Voluntary Secrecy. Attorney wants to (i) reveal that his client is planning to commit a crime; (ii) warn a friend that a client’s product is carcinogenic; or (iii) tip off a friend about an investment opportunity related to a client’s business. In these cases, look at the atty duty of confidentialty

Involuntary Secrecy. The court or opposing party seeks to compel information from the attorney, via subpoena or discovery request. In these cases, analyze whether the requested information is subject to atty client privilege or work product

If either applies, the attorney will not be forced to reveal the information.

Question 2

Ethical Duty of Confidentiality

Answer 2

• Broadest of the 3 secrecy doctrines
• Attorney must keep secret all information related to client’s representation, regardless of how the information was learned.
  
  • Does not matter who else knows the information
  • Does not matter who told the attorney about the information
  • The source of the information does not matter
• Exceptions
  
  • May reveal information to prevent the a reasonably certain death or substantial bodily harm of another

Example 7: Client is selling a dangerous, defective product that is reasonably certain to cause death or substantial bodily harm. Attorney may disclose this information to protect others from harm.

• • In OH, may reveal information to prevent the commission of a crime – by the client or another person
    * ​Crime need not be violent (e.g., murder) or financial(e.g., embezzlement)
    * Must be a future crime that is planned but not yet executed
    
    • May reveal information about past crimes, but attorney’s services must have been used to facilitate the crime and can reveal information to prevent or mitigate harm to another

Example 8: Client used Attorney’s services to develop an investment prospectus. Attorney believed that this was a legitimate investment opportunity. However, Client actually used the prospectus to defraud others. Because Attorney’s services were used, Attorney may reveal the Client’s fraud to protect and help victims.

• May reveal information for other limited purposes related to the representation

Example 9: Attorney asks Supervisor for advice about how to best comply with ethical duties regarding Client’s representation. Attorney may reveal information to Supervisor in order to obtain legal advice.

• May reveal information to defend herself against a claim

Example 10: Client brings a claim against Attorney for malpractice. In defending herself, Attorney may reveal confidential information.

• May reveal information in response to a court order
  
  • This overrides the duty of confidentiality

Note 2: Attorney-client privilege can override a court order, and privilege and work product protection can prevent information from being disclosed during discovery

Question 3

Attorney Client Privilege

Answer 3

• Three elements: (i) a communication (ii) in confidence (iii) for the purpose of seeking legal advice
  
  • If all 3 elements are met, neither the attorney nor the client can be compelled to reveal information (not even by court order).

Exceptions

• Waiver of privilege

Example 11: Client voluntarily shares confidential information with a third party. Or Client and Attorney have a conversation in a public place where others can overhear.

• Client seeks business or other non-legal advice
  
  • Privileged information is exempt from discovery requests
  • Privilege lasts forever , even past the client’s death.
    
    • Recent OH decision: A surviving can waive a deceased spouse’s privilege

Question 4

Work Product Doctrine

Answer 4

Includes documents, tangible items prepared by an attorney in anticipation of litigation in connection to a clients case

• Is exempt from discovery requests

Exam Tip 7: If a question states that opposing counsel requested documents or videotapes during discovery, consider whether the requested items are work product and thus exempted from discovery.

1. Core Work Product

• Includes attorney’s mental impressions, conclusion , or trial tactics
• Absolutely protected – need never be revealed

2. Ordinary Work Product

• Includes items involving facts (e.g., a recorded witness statement) without the attorney’s mental impressions or strategies
• May be discoverable if opposing side can show:
  
  • A substantial need for the information, and
  • The information can’t be obtained by any other means without undue hardship

Example 12: A transcript of an interview with a deceased witness may be subject to discovery by opposing counsel because

• Work product doctrine applies narrowly; i.e., only to documents and documents items
  
  • Differs from attorney-client privilege, which protects any kind of communication between attorney and client
  • Differs from duty of confidentiality which protects anything related to the representation